(1) This appeal against the judgment of Srinivasan, J. concerns the validity of an appointment to the office of a village headman for Vembi village in South Arcot Dt. The appointment to the office was regulated by the Madras Hereditary Village Offices Act, 1895. The office became vacant sometime during the year 1936, when one Pattabhirama Naidu, then a minor, was registered as the person lawfully entitled to hold the office. The first respondent herein was appointed as his deputy to do the duties pertaining to the office. Pattabhirama Naidu did not eventually acquire the necessary qualifications for becoming a village headman within the time allowed to him under the statute.
The next to succeed him was one Munuswami Naidu. He also happened to be a minor; he was registered and the first respondent was then appointed to function as his deputy. History repeated itself, as Munuswami failed to qualify himself for the post. The next in line of succession was the appellant, who was a minor at the time when Munuswami forfeited his right to the office. The appellant was recognised by the authorities as a person lawfully entitled to the post on 5-5-1950, that is, after the Constitution of India came into being. The first respondent was allowed to be his deputy. Contrary, perhaps, to the expectations of the first respondent, the appellant passed the prescribed tests within the time allowed to him, after attaining the age of majority. He applied on-12-1959 to enter upon the duties of his office. His attempt was countered by the first respondent, who made frivolous and false averments about the appellant's character and financial status. It was objected that the application itself had not been filed within the time permitted under the law.
(2) Both the Revenue Divisional Officer, in the first instance and the district Revenue Officer, on appeal, found that objections of the first respondent to be untenable and they affirmed the appellant's right to the office and allowed him to enter upon his duties. The order of the appellate authority was passed on 28-10-1960.
(3) On 6-12-1960 the supreme Court delivered judgment in a case from the Andhra Pradesh holding that the office of a village headman under the Madras Hereditary Village Offices Act, was an "office" under the state within the meaning of that term in Art. 16(1) and (2) of the Constitution and appointments thereto could not be made to depend on the basis of descent alone; for, then it would be discriminatory. The Supreme Court also invalidated S. 6(1) of that enactment. We are not however, concerned in this case about the latter aspect of the matter. The decision of the Supreme Court has been reported in Dasaratharama Rao v. State of A. P., .
(4) The first respondent appears to have thought that he could challenge the appellant's appointment on a more substantial ground than those put forward by him before the revenue authorities. He then filed an application to this court towards the end of March 1961, for the issue of a writ of certiorari under Art. 226 of the Constitution to quash the orders of the Revenue authorities, appointing the appellant to the office of village headman.
(5) Having regard to the fact that the invalidity of the application of the principle of heredity to the appointment of village officers was for the first time decreed by the Supreme Court in the decision referred to above, it could not reasonably be expected of the first respondent to have taken any objection as to the invalidity of the appellant's appointment before the revenue authorities. It cannot, therefore, be said that his application for the issue of a writ of certiorari should be rejected on the short ground that he had not taken the appropriate objection before the revenue authorities.
(6) Srinivasan, J. before whom the writ application came up for final disposal, held that inasmuch as the revenue authorities made the appointment of the appellant on the basis that the appellant had an overriding claim to be appointed to the office by virtue of his relationship to the previous holder, it could not be said that there was a proper appointment to the office. The learned Judge, therefore, issued a writ quashing the order of the revenue authorities. The appellant has now appealed.
(7) It will be noticed that although the appellant has been registered under S. 10(5) of the Act as the successor to the last holder as early as 5-5-1950, there has been no challenge to the registration then or at any later time. But registration by itself is not equivalent to an appointment to the office. It can only amount to a declaration that the person registered will be entitled, on attaining the age of majority or within 3 years thereafter, to be appointed to the office, provided he qualified himself for the post within the prescribed period. Failure to object to the registration will not, therefore, disentitle the first respondent from contesting the validity of the appointment of the appellant.
(8) It is true, as the learned Judge has pointed out, that the authorities proceeded on the footing that the person registered will be entitled to get himself appointed when he came forward with his application after passing the necessary tests. That was due to the fact that the prevailing opinion then was that the Madras Hereditary Village Offices Act, in so far as it recognised heredity as a claim to certain village offices, was a valid piece of legislation. Even if one were to hold that the Act in that respect is invalid, the appointing authority will still be the Government.
(9) The Board's Standing Orders, which govern the appointment to non-hereditary village offices and this case must in the light of the Supreme Court's decision be treated as one such as to invest the power of appointment in the very authorities who would be competent to make such appointment under the Act.
(10) gain at the time when the appellant made his application to the Revenue Divisional officer, for his being appointed to the office, there was no rival applicant. Even the first respondent, who objected to the proposals made by the Tahsildar of Villupuram, did not claim before the revenue Divisional Officer that he should be considered for such an appointment. The only objection raised by him was that the appellant was not entitled to be appointed to the office, because he had a bad reputation, that no property, and had not applied within the period permitted by the Act. If those objections were unfounded, it being now conceded they were unfounded, it must be taken that the first respondent himself had no objection to the appointment of the appellant. Indeed in one of his petitions he stated that the government should appoint the next heir to the last holder of the office.
Under the circumstances, the utmost that can be said in this case is that if the authorities were aware that the application of the heredity principle in the matter of making appointment to village offices was invalid, they would have adopted a different procedure and if there were more than one applicant for the post, they would have considered the applications. But it is too much to speculate now whether, if they had followed the normal procedure applicable to the appointment to a non-hereditary office, they would have got other applications. It cannot therefore be said that the non-observance of the procedure, if any, prescribed for the selection of non-hereditary village offices, has vitiated the fresh appointment.
(11) While heredity by itself cannot support a claim to the office, it has never been regarded as a disqualification, it has never been regarded as a disqualification. It can be conceded that to an office like the present one, where other things are equal, an applicant whose father or ancestor was village officer, would-be more competent to hold the post than a newcomer. We cannot also forget that in the instant case since the year 1950 the appellant, in the belief that he would be ultimately appointed as the village headman, had acquired the necessary qualification. In , there was a conflict for the
office between two persons, one with hereditary qualification and the other without. In such a case, on the principles there laid down by the Supreme Court, it was obvious that selection to the office could not be made purely on the basis of heredity. In the instant case, there was only one person who applied for appointment to the office. It cannot be said that anybody had been excluded in favour of the appellant.
(12) Learned counsel appearing for the respondent has invited our attention to an unreported judgment of Anantanarayanan J. in W. P. No. 32 of 1959 (Mad) who held.
"However this might be, it cannot be denied that the judicial canon is that the view enunciated by their Lordships of the Supreme Court in the decision just referred to not merely govern instances arising hereafter, but also instances brought to the notice of the court, since it must be presumed always to have been the law."
But this observation must be read in the context of opposing claims to an office, the vacancy to which arose before the judgment of the Supreme Court was rendered. As we read the judgment, the learned Judge did not, for instance, intend to lay down that even unchallenged appointments, based on the principle of heredity but made prior to the pronouncement by the Supreme Court, could be regarded as invalid. To accept such a principle would be to unsettle several appointments made by the government after the Constitution and prior to the year 1961. As we indicated above, what all Art. 14 and 16 prescribe is that there can be discrimination only where there is rival claims to the office.
(13) Srinivasan J. has held that as the entire matter has been dealt with by the revenue authorities only on the basis that the appellant had an overriding claim to be appointed to the office, the appointment should be held to contravene the principle laid down by the Supreme Court. We are unable to share that view. In the absence of a claim by any other person, it cannot be said that the appellant was chosen on any overriding considerations e.g. heredity.
(14) The first respondent's objection to the order of the revenue authorities has to fail on another ground as well. He was holding the post of village headman only as a deputy. As we said, he never applied for the post. It cannot, therefore, be said that when the revenue authorities overruled his objection, he was a person aggrieved by the order. It would have made little difference to him whether the appellant or any other person was appointed to the office. The learned Judge has said that as the first respondent has been deprived of his officer by the recognition accorded to the appellant, it would be competent for him to invoke the writ jurisdiction of this court. With respect, we are unable to agree. His office was only that of a deputy who will have to give way to the person appointed. It will be too much to speculate now that if the appellant's appointment were to be set aside and some other were to be chosen in his place, the first respondent would also have rights to continue his office as deputy.
In view of the decision in , there could be no
appointment of a minor to a village office. No question of appointing a deputy can at all arise hereafter. There could, therefore, be no office the holding of which by the first respondent could be said to have been imperiled so as to make him feel aggrieved with the appointment of the appellant. We are, therefore, of the opinion that there is no justification for interfering with the order of the revenue authorities appointing the appellant to the office of village headman. Further, the first respondent not being a person with a legal grievance, could not move this court for the issue of a writ.
(15) The appeal will therefore be allowed with costs against the first respondent here and before the learned Judge.
(16) Appeal allowed